507 F.

2d 530

Ronald David HOPKINS, Appellant,

v.
Park J. ANDERSON, Warden, Oklahoma State Penitentiary,
Appellee.
Donald Steven HOPKINS, Appellant, .v Park J. ANDERSON,
Warden, Oklahoma StatePenitentiary, Appellee.
Nos. 73-1949, 73-1950.

United States Court of Appeals, Tenth Circuit.

Dec. 16, 1974, Rehearing Denied Feb. 20, 1975, Certiorari
Denied April 14,1975, See 95 S.Ct. 1586.

Byron G. Rogers, Jr., Denver, Colo., for appellants.

Kay Karen Kennedy, Asst. Atty. Gen., State of Oklahoma (Larry
Derryberry, Atty. Gen., State of Oklahoma, with her on the brief), for
appellee.
Before LEWIS, Chief Judge, and PICKETT and McWILLIANS, Circuit
Judges.
PICKETT, Circuit Judge.

The Hopkins brothers pleaded guilty to an information filed in an Oklahoma

state court charging them and others in two counts with the crime of robbery
with firearms.1 Each is now serving two concurrent fifteen-year sentences in
the Oklahoma State Penitentiary. They brought these separate habeas corpus
actions against the warden of the penitentiary alleging denial of the same
constitutional rights prior to the entry of their pleas of guilty. The cases were
consolidated and after an evidentiary hearing the district court denied the
petitions. The appeals present like questions and also have been consolidated.

Habeas corpus is available to state prisoners only on denial by the state of

federal constitutional rights. 28 U.S.C. 2254; Townsend v. Sain,372 U.S. 293,
83 S.Ct. 745, 9 L.Ed.2d 770 (1963); United States ex rel. Little v. Twomey,

477 F.2d 767 (7th Cir.), cert. denied, 414 U.S. 846, 94 S.Ct. 112, 38 L.Ed.2d 94
(1973); Mathis v. People of State of Colorado, 425 F.2d 1165 (10th Cir. 1970).
Section 2254 provides that a habeas corpus petition by a state prisoner shall be
granted only when it appears that the applicant has exhausted the remedies
available to him in the state courts. Furthermore, the statute requires the
applicant 'to establish by convincing evidence that the factual determination of
the State court was erroneous.' The warden admits in his response that the
petitioners have exhausted their state remedies, but does not allege that they had
full and fair hearings in the state court and records of those hearings are not
submitted.2 Consequently, the United States district court granted an
evidentiary hearing. the question presented is whether the record discloses that
the pleas of guilty, under all the circumstances of the case, were coerced.
Voluntariness of a plea of guilty is a question of fact. Brady v. United States,
404 F.2d 601 (10th Cir. 1968), aff'd, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d
747(1970).
3

The Hopkins brothers were arrested with others by Oklahoma authorities

following two armed robberies. They were taken to the county sheriff's office
in McAlester, Oklahoma and questioned concerning their participation in the
robberies then under investigation. During the time they were held in jail they
were placed in lineups for identification purposes. The petitioners believed that
they were identified in the lineups as participants in the robberies, but there was
no substantial evidence that this was true. It is not shown that there is any
connection between the lineup procedures and the pleas of guilty. Later they
were taken before the district attorney where the question of pleas of guilty was
discussed. They were advised that the punishment upon conviction of armed
robbery was death or imprisonment for a period of not less than five years. At
the conclusion of these interviews with the district attorney they were advised
that sentences of fifteen years on each count to run concurrently would be
recommended on pleas of guilty. Ronald Hopkins testified that when this offer
was made he 'walked out of the district attorney's office,' apparently rejecting
the offer. Later the two brothers conferred and agreed that it would be to their
advantage to waive the appointment of an attorney and enter pleas of guilty.
Without advising what their pleas would be they were taken before a state
district court for arraignment where they were fully advised as to their
constitutional rights, including trial by jury and the appointment of counsel to
represent them if they were unable to employ one. Following the entry of pleas
of guilty the court advised them that sentencing would be delayed for two days
to afford them further time to consider their action. Two days later when they
were brought before the court for sentencing, the court asked them if they now
had anything additional to say and their response was, 'no.' Upon
recommendation of the district attorney the court imposed the fifteen-year

sentences to run concurrently.

4

The substance of the petitioners' testimony at the hearing on their habeas

corpus applications was that they knew of their right to a jury trial and to be
represented by competent counsel, but that the offer of the district attorney to
recommend fifteen-year sentences was conditioned upon a waiver of the right
to an attorney and a plea of guilty; further, the offer was on a 'take it or leave it'
basis and they concluded it was best for them to accept the offer rather than
risk the possibility of a greater sentence or imposition of capital punishment.
The state produced a transcript of the state court proceedings at the time of the
entry of the pleas of guilty and imposition of sentence. Affidavits of the district
attorney and his assistant were received in evidence. These affidavits stated that
prior to an interview the Hopkins brothers were advised of their constitutional
rights, including the right to counsel and jury trial. They were informed of the
charges pending against them and the penalties for such crimes. It was stated
that at no time were they threatened with life imprisonment or possible
execution if they refused to plead guilty after waiving their right to be
represented by counsel, and that no statements or threats were made that would
have dissuaded the petitioners from obtaining assistance of counsel. The
affidavits state that the Hopkins brothers were told that if pleas of guilty were
entered, two fifteen-year sentences to run concurrently would be recommended.
The trial court found that petitioners were informed of their constitutional rights
and that they knowingly, intelligently and voluntarily waived their right to an
attorney. The court stated that 'the evidence clearly demonstrates that the pleas
were knowingly, intelligently and voluntarily made.' The court further stated
that the pleas were entered as a result of properly conducted plea bargaining
whereby the district attorney, on pleas of guilty, offered to recommend
sentences of fifteen years for a crime which carried with it a possible death
penalty or life imprisonment. As stated in the Brady case, 'Often the decision to
plead guilty is heavily influenced by the defendant's appraisal of the
prosecution's case against him and by the apparent likelihood of securing
leniency should a guilty plea be offered and accepted.' 397 U.S. at 756, 90 S.Ct.
at 1473. Advising an accused of the consequences of a conviction does not
constitute coercion. Beavers v. Anderson, 474 F.2d 1114 (10th Cir. 1973). We
are satisfied that, considering all the circumstances, these findings are
supported by the record.

It is urged that under Oklahoma law a court shall not accept a plea of guilty
from an indigent defendant who is charged with a capital offense without
appointment of counsel, therefore the pleas were invalid. Glynn v. State, 442
P.2d 526 (Okl.Cr.1968). In the Oklahoma post conviction proceeding this rule
was not applied. In any event, the federal standard for determining the validity

of waivers of constitutional rights, including pleas of guilty, is whether such

waivers and pleas were voluntarily and intelligently made 'with sufficient
awareness of the relevant circumstances and likely consequences.' Brady v.
United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1969).
The possibility of avoiding a death sentence does not necessarily prove that the
plea was coerced. North Carolina v. Alford,400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970); United States v. Jackson,390 U.S. 570, 88 S.Ct. 1209, 20
L.Ed.2d 138 (1967); Beavers v. Anderson,supra.
6

We find no merit in the contention that counsel should have been appointed to
represent the petitioners in the habeas corpus proceedings. We have held that
habeas corpus is a civil action and that there is no constitutional right to the
assistance of counsel in such proceedings in federal court. Plaskett v. Page, 439
F.2d 770 (10th Cir. 1971); Pope v. Turner, 426 F.2d 783 (10th Cir. 1970);
Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969); Flowers v. Oklahoma, 356
F.2d 916 (10th Cir. 1966).

Finding no error, we affirm the judgment.

At the time they were charged, 21 O.S.A. 801 provided:

Any person or persons who, with the use of any firearms or any other
dangerous weapons, attempts to rob or robs any person or persons, or who robs
or attempts to rob any place of business, residence or banking institution or any
other place inhabited or attended by any person or persons at any time, either
day or night, shall be guilty of a felony, and, upon conviction therefor, shall
suffer punishment by death; or imprisonment, at hard labor, in the State
Penitentiary, for a period of time of not less than five years, at the discretion of
the Court, or the jury trying the same.

28 U.S.C. 2254(d) designates the criteria upon which a federal court may
accept the factual determination of the state court in post conviction cases. See
Sandoval v. Rodriguez, 461 F.2d 1097 (10th Cir. 1972); Garcia v. Baker, 421
F.2d 671 (10th Cir. 1970); Canales v. Baker, 406 F.2d 685 (10th Cir. 1969);
Maes v. Patterson, 401 F.2d 200 (10th Cir. 1968)